SWLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 14

FEDERAL COURT OF AUSTRALIA

SWLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 14 SWLB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No S 140 of 2004 FINN J ADELAIDE 20 JANUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 140 OF 2004

BETWEEN: SWLB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 20 JANUARY 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 140 OF 2004

BETWEEN: SWLB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE: 20 JANUARY 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This matter was heard together with SVYB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 15. Save in one minor and immaterial respect that involved reliance on s 36(3) of the Migration Act 1958 (Cth) in SVYB, the two proceedings raised identical issues and were so treated in submissions. 2 The applicant is from Afghanistan. He is of the Hazara ethnic group; is a Shia Muslim; and comes from the Behsud district of Wardak province. Having arrived in Australia in October 1999, he lodged an application for a protection visa and was subsequently granted a temporary protection visa. That visa was granted on the basis that the applicant was at risk of being killed by the Taliban because of his race and religion. 3 The applicant made a further application for a protection visa in 2000. By the time it was determined in October 2003 the Taliban had been removed from power in Afghanistan. The application was rejected on the ground that the applicant did not face a real chance of persecution on return to Afghanistan, by the Taliban or other groups or factions. Review of this decision was sought in the Refugee Review Tribunal ("the Tribunal"). 4 Though the Tribunal in this matter was not constituted by the same member as in SVYB, the approach taken on review was, for present purposes, the same. First, acknowledging that the applicant had already been recognised as having refugee status, the Tribunal considered whether he had ceased to be a refugee under the Convention by reason of the operation of Article 1C(5) of the Convention ("the Cessation clause"). Under that Article the Convention ceases to apply to a person owed protection obligations if that person can no longer continue to refuse to avail himself of the protection of the country of his nationality "because the circumstances in connection with which he has been recognised as a refugee have ceased to exist". 5 Having regard to the particular basis on which the applicant was found to be a refugee and to the later country evidence concerning the Taliban, the Tribunal concluded that Article 1C(5) applied to the applicant. 6 It then went on to consider whether the applicant was nonetheless owed protection obligations for other reasons. It concluded he was not for reasons I note below. In consequence his application was refused. 7 The application to this Court proceeded on two distinct bases. The first related to the manner in which the Tribunal considered his application in light of Article 1C(5). I will call this the Cessation clause ground. The second challenged the decision on other judicial review grounds. I will call these the non-Cessation clause grounds. 8 The Cessation clause ground is relevantly identical to that raised in SVYB. I have given my reasons for rejecting the applicant's contention in that matter: see [1]-[6]; and I incorporate those paragraphs by reference into these reasons. The present applicant must fail on this ground for those reasons.